IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Douglas Willard,

Plaintiff,

v. Case No. 2:12-cv-266

The Ohio Operating Engineers

Pension Plan, et al.,

Defendants.

OPINION AND ORDER

This is an action brought pursuant to the Employee Retirement

Income Security Act of 1974 (“ERISA”), 29 U.S.C. §1001, et seq. In

Count I of his complaint, Douglas Willard, a participant in the

Ohio Operating Engineers Pension Plan (“the Plan”), asserts a claim

for benefits pursuant to 29 U.S.C. §1132(a)(1)(B) against the Plan

and its Board of Trustees (“the trustees”).1 This matter is now

before the court on the parties’ cross-motions for judgment on the

administrative record.

I. Standard of Review

A. Applicability of Arbitrary and Capricious Standard of Review

A plan administrator’s denial of benefits is reviewed de novo

unless the benefit plan specifically gives the plan administrator

discretionary authority to determine eligibility for benefits or to

construe the terms of the plan. Morrison v. Marsh & McLennan

Companies, Inc., 439 F.3d 295, 300 (6th Cir. 2006). Where an ERISA

plan gives the plan administrator such discretionary authority, the

1 By order dated January 30, 2013, the benefits claim brought against the

Ohio Operating Engineers Health and Welfare Plan and its Board of Trustees was

dismissed without prejudice for failure to exhaust administrative remedies. That

order also dismissed Count II, plaintiff’s claim for breach of fiduciary duty. 

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administrator’s decision is reviewed under the arbitrary and

capricious standard. Firestone Tire & Rubber Co. v. Bruch, 489

U.S. 101, 111 (1989). The Plan provides for a board of trustees

consisting of eight persons. Half of the trustees are union

trustees, and half of the trustees are employer trustees. AR 175,

Plan, §8.01. The Plan is administered by a fund administrator

appointed by the trustees. AR 175, Plan, §9.01. The Plan provides

that the “Trustees or the Fund Administrator, if so directed by the

Trustees, shall have such powers as may be necessary to discharge

their duties to administer the Plan in their sole and absolute

discretion.” AR 175, Plan, §9.02. Those powers include the

authority “to construe and interpret the Plan, decide all questions

of eligibility and determine the amounts, manner and time of

payment of any benefits hereunder[.]” AR 176, Plan, §9.02(a). The

Plan also includes a procedure for review by the trustees of the

denial of a claim for benefits by the fund administrator. AR 182,

Plan §14.03. This provision specifies that the “Trustees will make

a determination, in their sole discretion, based upon the

applicable provisions of the Plan, whether to approve or deny such

appeal.” AR 183, Plan §14.03. The court concludes that the Plan

gives the trustees discretionary authority, and that the arbitrary

and capricious standard of review applies in this case.

B. Conflict of Interest

Plaintiff contends that any financial conflict of interest on

the part of the fund administrator should be considered in

reviewing the decision to deny benefits. In applying the arbitrary

and capricious standard, a court will weigh as a factor whether a

conflict of interest existed on the part of the decision-maker in

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determining whether there was an abuse of discretion. Metropolitan

Life Ins. Co. v. Glenn, 554 U.S. 105, 115 (2008); Bennett v. Kemper

Nat’l Servs., Inc., 514 F.3d 547, 552-53 (6th Cir. 2008). However,

“[m]ere allegations of the existence of a structural conflict of

interest are not enough to show that the denial of a claim was

arbitrary; there must be some evidence that the alleged conflict of

interest affected the plan administrator’s decision to deny

benefits.” Peruzzi v. Summa Medical Plan, 137 F.3d 431, 433 (6th

Cir. 1998).

In this case, the Plan is a multi-employer plan which is

funded by employer contributions, and all contributions and Plan

assets are held in trust. See AR 220. No evidence has been

presented indicating that the fund administrator or the trustees

derive any financial gain from denying benefit claims. The Sixth

Circuit has held that where the plan is a multi-employer plan

without a profit motive and the individual trustees receive no

personal financial benefit from approving or denying claims, this

structure does not create an inherent conflict of interest. See

Klein v. Central States, Southeast and Southwest Areas Health and 

Welfare Plan, 346 F.App’x 1, 5 (6th Cir. 2009); see also Love v.

Central States, Southeast and Southwest Areas Pension Plan, No.

1:11-cv-275 (unreported), 2012 WL 394992 at *8 (S.D.Ohio Feb. 7,

2012); Muse v. Central States, Southeast and Southwest Areas Health

and Welfare and Pension Funds, 227 F.Supp.2d 873, 877 (S.D.Ohio

2002). The mere possibility that the trustees may have considered

the financial ramifications to the Plan assets in making their

decision does not create a conflict of interest. Muse, 227

F.Supp.2d at 877. Furthermore, the fact that the Board of Trustees

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is made up of both employer and union representatives in equal

numbers also distinguishes this case from the potential for bias

found where a single employer administers a self-funded plan. See

id.; Klein, 346 F.App’x at 5. The court concludes that there is no

evidence in this case suggesting that the fund administrator or the

trustees acted under a conflict of interest.

II. The Administrative Record

In 2006, plaintiff began receiving an early unreduced

retirement pension benefit based on disability after he was

diagnosed with lymphoma in 2005. By letter dated March 18, 2011,

Ray Orrand, the Plan administrator, advised plaintiff that “it has

been brought to our attention that you may be working full time as

an operating engineer while receiving benefits from Local 18.” 

Orrand asked plaintiff to submit his 2010 tax return “[i]n order to

verify that you are not working in excess of 40 hours per month

while receiving pension benefits[.]” Doc. 26-1, p. 1. Plaintiff

submitted his 2010 federal and Ohio tax returns and W-2 forms. 

Doc. 26-1, pp. 3-14. On his individual tax return, plaintiff

claimed $761 in business income, and identified his occupation as

“DRIVER.” Doc. 26-1, pp. 4-5. On the schedule for profit or loss

from business, he specified that his principal business was “FARM

HAND” and claimed expenses in the amount of $1,411 for gravel and

limestone. Doc. 26-1, pp. 6-7.

By letter dated April 18, 2011, Orrand informed plaintiff that

after “reviewing your job classifications on the [tax returns]

submitted, farm hand and driver, it is my decision that you are no

longer qualified to receive disability pension benefits” and that

plaintiff’s benefits would “cease effective May 1, 2011.” Doc. 26-

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1, p. 15. In a letter dated May 12, 2011, to Orrand, plaintiff’s

counsel referenced the April 18, 2011, letter “terminating

[plaintiff’s] pension benefits” and stated that plaintiff was

appealing the denial of benefits under the Plan. AR 38. Counsel

further stated that in 2010, plaintiff “was self employed as a

driver/farm hand. His duties in these positions consisted of

driving a trailer with hay and driving a dump truck with gravel.” 

However, counsel claimed that plaintiff “has never operated any

machinery even remotely similar to the work [he] performed as an

operating engineer.” AR 39. By letter dated June 2, 2011, counsel

asked Orrand whether plaintiff’s benefits had been restored, as he

had received a benefits payment for June of 2011. Doc. 26-1, p.

16. By letter dated June 8, 2011, Orrand informed counsel that

plaintiff had not appealed the suspension of his benefits, and that

the June payment was made in error and should be returned. Doc.

26-1, p. 18. Counsel responded to Orrand by letter dated June 14,

2011, and stated that plaintiff had appealed the denial of his

benefits, referencing counsel’s letter of May 12, 2011, and that

plaintiff “requests a review that the suspension/termination of his

benefits be repealed[.]” Doc. 26-1, p. 19. However, before any

appeal was submitted to the trustees, Orrand notified counsel by

letter dated June 24, 2011, that “[b]ased on current language

contained in the Ohio Operating Engineers Pension Fund, Mr.

Willard’s pension benefits have been reinstated at this time.” 

Doc. 26-1, p. 27.

On July 20, 2011, plaintiff was examined by Dr. Robert F.

Shadel, M.D., pursuant to the terms of the Ohio Operating Engineers

Health and Welfare Plan, from which plaintiff was also receiving

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benefits. In his report dated July 21, 2011, Dr. Shadel noted that

plaintiff “did not work as a crane operator after 2005 but worked

as an operating engineer.” AR 33. Dr. Shadel further wrote that

plaintiff stated that “there was some upset with him working as an

operating engineer and he believes that is why he has been sent in

for this examination today.” AR 33.

By letter dated August 15, 2011, Orrand advised plaintiff that

his disability retirement benefit under the Plan was “suspended as

of September 1, 2011 ... pursuant to Article 6, Section 6.06 of the

Plan.” AR 5. The letter further stated:

Under Section 6.06(f) of the Plan, a Participant

receiving benefits must “... notify the Fund

Administrator of certain details of any employment after

such benefits have commenced.” In the event the

Participant fails to provide the required notice, Section

6.06(f) states that the Fund Administrator shall suspend

pension benefits upon learning of subsequent potential

service of 41 Hours of Service or more for an employer

within the jurisdiction of the Union.

It has come to the Plan’s attention based on statements

you made during a recent examination of your disability

status that you have worked as an operating engineer

after 2005. The Plan has also received documents

indicating that you have worked as a dump truck driver

hauling gravel in 2010 and that you have a current

commercial driver[’]s license. Considering this

information as a whole, it appears that you are in

violation of the Plan’s suspension of benefits provision

and therefore, pursuant to Section 6.06(f) of the Plan,

your benefits are suspended as of September 1, 2011.

AR 5. The letter went on to advise plaintiff of his right to

appeal the adverse decision to the trustees. AR 5-7. The

administrative record includes an abstract driver record indicating

that plaintiff had a Class A commercial driver’s license issued on

April 1, 2011, with endorsements for “MOTORCYCLE, TANK VHCL,

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DBL/TRP/TL” (AR 8); photographs of plaintiff operating a backhoe2

in Fairfield County on March 31, 2011, and of plaintiff’s residence

taken in mid-March of 2011, showing a dump truck and a pile of

gravel in the yard (AR 10-19); and Dr. Shadel’s report (AR 33-35).

By letter dated October 14, 2011, plaintiff’s counsel informed

Orrand that plaintiff was appealing the Plan’s decision suspending

benefits. Plaintiff submitted tax returns and W-2 forms for the

years 2004 through 2010, which reflected income from Kokosing

Construction from 2004 to 2006, and income from C & L Erectors and

Riggers in the amount of: $18,171.20 in 2007; $4,157.73 in 2008;

and $1,170.00 in 2009. AR 40-58. By letter dated November 11,

2011, plaintiff’s counsel was advised that plaintiff’s appeal was

scheduled to be heard at the trustees’ meeting on January 30, 2012. 

This letter further stated that plaintiff and counsel could present

plaintiff’s opinion at the meeting and submit a position statement

along with authorities or additional evidence. AR 61.

Plaintiff’s counsel informed Thomas Tarpy, counsel for the

Plan, by letter in January of 2012 that he and plaintiff would not

be attending the trustees’ meeting. AR 91. In this letter,

counsel stated that plaintiff denied working as an operating

engineer after 2005, and argued that plaintiff was still disabled. 

AR 92-94. Counsel also submitted several medical records,

including: a December 22, 2009, report from Dr. Robert Mueller

concerning surgery on plaintiff’s right arm (Ex. A); August 9,

2011, and August 23, 2011, reports from Dr. Brian Jenkins, who

2

 This equipment, also referred to in the record as a front loader,

consisted of a large treaded vehicle with a box-like, windowed structure

surrounding the driver’s seat and the controls, a long, jointed arm, and a

movable bucket scoop attached to the end of the arm. AR 18.

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treated plaintiff for low back pain (Exs. B and D); a July 21,

2011, radiology report from Dr. John Leach, diagnosing plaintiff as

having lumbar spine degenerative disc disease (Ex. C); an August

11, 2011, report from Dr. James Sardo concerning plaintiff’s back

pain (Ex. E); a letter dated August 29, 2011 from Dr. Jeanna Knoble

expressing concern about plaintiff returning to work in light of

his lymphoma (Ex. F); a September 5, 2008 report from Dr. Praveen

Giri, who saw plaintiff for numbness and tingling in his hands (Ex.

H); a note from Dr. James Mosley stating that plaintiff has

persistent dizziness and problems with equilibrium (Ex. G) and Dr.

Mosley’s September 26, 2011, report regarding his treatment of

plaintiff for back pain (Ex. I). AR 96-114. Dr. Mosley noted in

an addendum to his September report that plaintiff had called to

state that there were some inaccuracies in the past medical history

and social history portion of the treatment notes for September 22,

2011, which contained information taken from the medical records of

Dr. Jenkins, plaintiff’s primary physician. AR 113-114. The

“Social History” section of Dr. Mosley’s notes originally stated

that plaintiff was a “former crane operator for Kokosing; self

employed part-time dump truck operator.” AR 110. The notes were

amended to state that plaintiff was a “former crane operator and

truck operator for Kokosing, now disabled.” AR 114.

The administrative record also includes a WebTAP investigative

report from Joshua Nehis, an investigator with InfoQuest

Investigative Services, concerning a background investigation

conducted on plaintiff on November 28, 2011. The report indicated

that plaintiff stated on his Facebook profile that he works for

Willard Gravel. The phone number provided for the business was the

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same number registered to plaintiff’s home address and the same

number provided by plaintiff on his 2010 tax return. AR 68, 234. 

The report also stated that the number for Willard Gravel was found

in various online phone books, the 2010 Hocking Valley Advertiser,

and the 2011 Ross County Advertiser. AR 69-70. The record

includes copies of advertisements for Willard Gravel contained in

the April 4, 2010, Hocking Valley Advertiser and the February 13,

2011, Pickaway County Advertiser. AR 117, 128. The InfoQuest

report also included a traffic crash witness statement prepared by

Trooper Ward of the Ohio State Highway Patrol following plaintiff’s

motorcycle accident on July 12, 2011, in which plaintiff stated

that at the time of the accident, he had just looked at a driveway

estimate job. AR 78.

The record contains a report from InfoQuest dated December 23,

2011, regarding the surveillance of plaintiff’s residence. The

report stated that plaintiff has a dump truck registered in his

name. AR 62. On December 12, 2011, a dump truck arrived at

plaintiff’s residence and dumped a load of gravel near the pole

barn. Plaintiff’s registered dump truck arrived around 1:45 p.m.,

but it was not clear who was driving the truck. AR 63. On

December 14, 2011, the investigator observed plaintiff’s dump truck

parked in the driveway with a trailer attached containing a skid

steer, and he also observed a backhoe near the pole barn. 

Plaintiff left his residence driving the dump truck at 8:28 a.m.

and was followed to Melvin Stone, a limestone company in

Chillicothe, where he obtained a load of stone. Plaintiff returned

to his residence and dumped the load of stone. Plaintiff then

returned to Chillicothe and went to Melvin Stone for another load

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of gravel. Plaintiff proceeded to a residence on State Route 56,

where he dumped the gravel in the driveway. He got out of the

truck and raked the driveway before leaving. Plaintiff then drove

back to his residence. AR 63-66. A copy of the video taken on

December 14, 2011, is included in the record. See Doc. 18.

In an e-mail dated January 26, 2012, InfoQuest investigator

Michael Doody reported that he spoke that day with Moni, a scale

clerk at Melvin Stone, concerning plaintiff. AR 139. An audio

recording of this phone interview is included in the record. See

Doc. 18. Doody referred to plaintiff by name, stating that he was

considering hiring him for a job. Moni stated that plaintiff pulls

up at least weekly, and sometimes daily during the busy summer

months, to get loads of gravel, paying with a credit card account

he has with Melvin Stone. She stated that she only observes

plaintiff on the video screen, and she could not describe him other

than to say that he has dark hair and drives a dump truck. AR 139.

The record also includes an audio recording of a conversation

on January 27, 2012, between the InfoQuest investigator and Dr.

Douglas Paul, whose residence plaintiff visited on December 14,

2011, during the video surveillance. See Doc. 18. Dr. Paul stated

that he had hired plaintiff a couple months ago to apply gravel,

move earth and fix a culvert on his property. He described

plaintiff as a hands-on owner, and stated that plaintiff worked

four full days on the job. Dr. Paul stated that he learned about

plaintiff from a flyer he saw in Laurelville, and reported that

plaintiff does most of the earth-moving, gravel and trench work for

the Village of Adelphi in Ross County.

On February 3, 2012, following the trustees’ meeting on

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January 30, 2012, Plan Administrator Orrand, on behalf of the

trustees, notified plaintiff that the trustees had decided to

uphold the suspension of his pension benefits. Orrand referred to

Plan §6.06(a), which provides that “[a]ny monthly benefit otherwise

payable under this Plan shall be permanently forfeited for any

month in which a Participant or former Participant is credited with

41 or more hours of service in that month in the geographic

jurisdiction of the Union in a trade or craft in which the

Participant was employed while a Participant in the Plan.” Orrand

also quoted from Plan §6.06(f), which provides:

Participants receiving benefits must notify the Fund

Administrator of certain details of any employment after

such benefits have commenced. Such details shall include

the name and address of the employer, work site location,

date employment commenced, nature of employment, actual

hours worked by month and expected monthly hours. If the

Participant does not provide such notice, the Fund

Administrator shall suspend pension benefits pursuant to

this section upon learning of subsequent potential

service of 41 Hours of Service or more for an employer

within the jurisdiction of the Union unless it is

unreasonable under the circumstances for the Fund

Administrator to presume that the Participant was engaged

in such service.

AR 170.

Orrand further stated that plaintiff’s benefits were suspended

in August, 2011, based on evidence indicating that plaintiff was

“actively working in the trade,” including: statements allegedly

made by plaintiff during the July 21, 2001, physical examination;

plaintiff’s 2010 tax return, which listed plaintiff’s occupation as

a “driver;” plaintiff’s current commercial driver’s license; and

photographs of plaintiff operating a front loader. AR 143. The

letter then discussed additional evidence obtained while the appeal

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was pending “confirming that you are actively working in Local 18's

jurisdiction as an operating engineer,” including: the December,

2011, video which showed plaintiff picking up, hauling and

delivering gravel to a residence and resurfacing the driveway;

advertisements from 2010 and 2011 for Willard Gravel offering

driveway, bank run, top soil, fill material and mobile home

transport and set-up services; the fact that the number given for

Willard Gravel was the number included by plaintiff on his 2010 tax

return; and plaintiff’s statements to the accident investigator on

July 12, 2011, that he was on his way back from a driveway estimate

job prior to the accident. AR 144. Orrand concluded, “All of this

evidence supports the Plan’s presumption that you are working more

than 41 hours a month as an operating engineer.” AR 144.

Orrand noted the arguments made in plaintiff’s position paper,

including plaintiff’s allegations that Dr. Shadel’s notation that

he was working as an operating engineer was a fabrication, and that

the Plan was previously aware that he had a commercial driver’s

license and that he did “driving work.” He also noted plaintiff’s

denial that he had worked as an operating engineer since 2005. AR

144. Orrand referred to the medical reports submitted by

plaintiff, including the opinion of Dr. Jenkins that he could not

see how plaintiff could be expected to operate heavy machinery

again. Orrand then stated, “The issue before the Board, however,

was not whether you are still disabled, but rather whether it was

reasonable for the Plan to presume you were working more than 41

hours a month as an operating engineer.” AR 114.

Orrand goes on to state that the Board agreed with the Plan’s

decision to suspend plaintiff’s benefits based on: 1) plaintiff’s

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statements to Dr. Shadel; 2) photos of plaintiff operating heavy

equipment; 3) the 2010 tax return listing plaintiff’s occupation as

“driver;” 4) plaintiff’s commercial driver’s license; and 5) W-2

forms from 2007-2009 showing that plaintiff received income from

C&L Erectors & Riggers, a business located in Laurelville, Ohio. 

Orrand then observed:

You provided no evidence to the Board indicating that you

are not working in the trade other than stating in your

appeal letter that you had not worked as an operating

engineer since 2005 and submitting medical reports to

support your claim that you cannot operate heavy

equipment. Your claims are contrary to the pictures and

video that exist of you operating heavy equipment

including a dump truck. You operate a business called

Willard Gravel and actively advertised that business in

2010 and 2011. All of this evidence supports the

credibility of Dr. Shadel’s July 21, 2011 report notation

that, while you may not have worked as a crane operator

after 2005, you have worked as an operating engineer. 

Also, the use of the phrase “operating engineer” is not

isolated in Dr. Shadel’s report, as he also wrote that

you said that people were “... upset with him working as

an operating engineer and the believes that is why he has

been sent in for this examination today.”

AR 144-145. Orrand then noted the “[p]articularly troubling”

notation in Dr. Mosley’s September 26, 2011, report that plaintiff

called his office to say that the statement that plaintiff was a

self-employed part-time dump truck operator was inaccurate, after

which Dr. Mosley revised his report to state that plaintiff was a

former crane operator and truck operator for Kokosing, now

disabled. Orrand commented, “Your action in having this report

revised indicates an attempt on your part to misrepresent your

current employment status to both your physicians and to the Plan.” 

AR 145.

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III. Review of the Trustees’ Decision

A. Compliance with Review Procedures

1. Notification Letter

Plaintiff argues that the Plan’s decision suspending his

benefits did not comply with ERISA’s notice requirements. Under 29

U.S.C. §1133, an employee benefit plan must:

(1) provide adequate notice in writing to any participant

or beneficiary whose claim for benefits under the plan

has been denied, setting forth the specific reasons for

such denial, written in a manner calculated to be

understood by the participant, and

(2) afford a reasonable opportunity to any participant

whose claim for benefits has been denied for a full and

fair review by the appropriate named fiduciary of the

decision denying the claim.

29 U.S.C. §1133. Similarly, the Department of Labor regulations

require that a notification letter contains: (1) the specific

reason(s) for the adverse determination; (2) reference to the

specific plan provisions on which the determination is based; (3)

a description of any additional materials necessary to perfect a

claim; and (4) a description of the plan’s review procedures, the

time limits applicable to such procedures, and the claimant’s right

to bring a civil action following an adverse benefit determination

or review. 29 C.F.R. §2560.503-1(g).

The essential purposes of the statute are: (1) to notify the

claimant of the specific reasons for a claim denial; and (2) to

provide the claimant an opportunity to have that decision reviewed

by the fiduciary. Wenner v. Sun Life Assurance Co. of Canada, 482

F.3d 878, 882 (6th Cir. 2007). The Sixth Circuit applies a

“substantial compliance” test to determine whether §1133's notice

requirements have been met. Id. The relevant inquiry is “whether

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the plan administrators fulfilled the essential purpose of [§1133]—

notifying Plaintiff of their reasons for denying his claims and

affording him a fair opportunity for review.” Moore v. Lafayette

Life Ins. Co., 458 F.3d 416, 436 (6th Cir. 2006). In deciding

whether there has been substantial compliance, courts consider all

communications between an administrator and plan participant to

determine whether the information provided was sufficient under the

circumstances. Id. “When claim communications as a whole are

sufficient to fulfill the purposes of Section 1133 the claim

decision will be upheld even if a particular communication does not

meet those requirements.” Kent v. United Omaha Life Ins. Co., 96

F.3d 803, 807 (6th Cir. 1996).

The August 15, 2011, notification letter complied with the

requirements of §1133. The letter noted the specific Plan

provision, §6.06(f), which was relied upon as the basis for the

suspension of benefits, and quoted the relevant language from that

provision. The letter explained the evidence relied upon by the

Plan in concluding that plaintiff was in violation of that section

of the Plan. The letter also advised plaintiff of his right to

appeal the decision, specified the time limits for filing an

appeal, and advised him of his right to present additional

evidence. AR 5. Plaintiff was advised that the appeal would be

heard at the next quarterly meeting of the trustees, and that he

had a right to bring a civil action following the completion of the

appeals process. AR 6. Attached to the letter is a copy of the

Plan’s appellate procedure. AR 7. The October 14, 2011, letter of

plaintiff’s counsel to Orrand also indicates that plaintiff

understood the reason for the suspension of his benefits. See AR

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38 (“You provided the reason for suspending benefits because Mr.

Willard has allegedly ‘worked as an operating engineer after 2005'

coupled with the fact that Mr. Willard hauled gravel for a short

time in 2010 and has a CDL; thereby violating Section 6.06(f) of

the Plan.”). The purposes of §1133 have been satisfied in this

case.

2. New Evidence Considered by Trustees

Plaintiff also argues that he was not afforded a fair review

process because the trustees considered evidence which was

submitted following the August 15, 2011, decision of the Plan

denying benefits, including video showing plaintiff hauling gravel

and resurfacing a driveway, audio of interviews with an employee at

Melvin Stone and plaintiff’s customer, Dr. Paul, and advertisements

for plaintiff’s gravel business.

In Metzger v. UNUM Life Ins. Co. of Am., 476 F.3d 1161, 1167

(10th Cir. 2007), the court held that a plan administrator was not

required to furnish evidence generated during the administrative

appeal process to the claimant prior to the final decision on

appeal. See also Midgett v. Washington Group Int’l Long Term

Disability Plan, 561 F.3d 887, 896 (8th Cir. 2009); Glazer v.

Reliance Standard Life Ins. Co., 524 F.3d 1241, 1245-46 (11th Cir.

2008). In so holding, these courts relied on Department of Labor

regulations. Section 2560.503-1(h) requires employee benefit plans

to “establish and maintain a procedure by which a claimant shall

have a reasonable opportunity to appeal an adverse benefit

determination.” 29 C.F.R. §2560.503-1(h). The “adverse benefit

determination” referred to throughout that section “is the plan

administrator’s initial denial of a claim for benefits”. Midgett,

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561 F.3d at 894 (citing Price v. Xerox Corp., 445 F.3d 1054, 1056

(8th Cir. 2006)).

Under 29 C.F.R. §2560.503-1(h)(2)(iii), an administrator on

appeal is required to:

Provide ... upon request and free of charge, reasonable

access to, and copies of, all documents, records, and

other information relevant to the claimant’s claim for

benefits. Whether a document, record, or other

information is relevant to a claim for benefits shall be

determined by reference to paragraph (m)(8) of this

section

29 C.F.R. §2560.503-1(h)(2)(iii)(emphasis supplied). Under

paragraph (m)(8), a document, record or other information is

considered “relevant” if it was “relied upon in making the benefit

determination” or “submitted, considered, or generated in the

course of making the benefit determination.” 29 C.F.R. §2560.503-

1(m)(8). The court in Metzger interpreted §2560.503-1(h)(2)(iii)

as requiring that “relevant documents generated or relied upon

during the initial claims determination must be disclosed prior to

or at the outset of an administrative appeal.” Metzger, 476 F.3d

at 1167; see also Midgett, 561 F.3d at 894 (§2560.503-1(h)(2)(iii)

entitles a claimant to review the administrative record of initial

denial of her claim); Glazer, 524 F.3d at 1245 (noting that new

document was not subject to disclosure under subsection (h)(2)(iii)

as “relevant” under subsection (m)(8) until plan “relied upon” the

new evidence in reaching a final decision on appeal).

A different regulation permits access to documents following

a adverse benefit determination on review or appeal. Section

2560.503-2(i)(5) provides: “In the case of an adverse benefit

determination on review, the plan administrator shall provide such

access to, and copies of, documents, records, and other information

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described in paragraphs (j)(3), (j)(4) and (j)(5) of this section

as is appropriate.” 29 U.S.C. §2560.503-2(i)(5)(emphasis

supplied). “The inclusion of the language ‘on review’ [in

§2560.503-1(i)(5)] differentiates the initial ‘adverse benefit

determination’ from later internal appeals of it.” Price, 445 F.3d

at 1057. Thus, the Metzger court concluded that under §2560.503-

2(i)(5), “relevant documents generated during the administrative

appeal–along with the claimant’s file from the initial

determination–must be disclosed after a final decision on appeal.” 

Metzger, 476 F.3d at 1167; see also Midgett, 561 F.3d at 895

(holding that “following a denial of a first-level or second-level

appeal, §2560.503-1(i)(5) entitles a claimant to review the

materials relevant to his or her claim on appeal” and that claimant

was entitled to access new documents only after plan “made its

‘adverse Benefit determination’ on review”); Glazer, 524 F.3d at

1245 (after plan reached final decision, all relevant documents

generated during review had to be produced under subsection

(i)(5)). 

The court in Metzger also noted that the Department of Labor’s

own description of these regulations supported the court’s

interpretations.. Id. at 1167; see also Midgett, 561 F.3d at 896;

Glazer, 524 F.3d at 1246. In explaining its decision to adopt

§2560.503-1(m)(8), the Department of Labor indicated that the

purpose of the production of these documents was to “provid[e]

claimants with adequate access to the information necessary to

determine whether to pursue further appeal.” ERISA Claims

Procedure, 65 Fed.Reg. 70,246, 70,252 (Nov. 21, 2001). The Metzger

court concluded that giving claimants pre-decision access to

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documents generated during the administrative appeal would nullify

the Department’s explanation. Metzger, 476 F.3d at 1167 (noting

that access to documents during the course of an administrative

appeal would not aid claimants in determining “whether to pursue

further appeal” because they would not yet know if they faced an

adverse decision); see also Midgett, 561 F.3d at 896; Glazer 524

F.3d at 1246.

A separate issue is presented by the claimant’s duty under

§2560.503-1(h)(2)(iii) to request documents. In Balmert v.

Reliance Standard Life Insurance Co., 601 F.3d 497 (6th Cir. 2010),

the Sixth Circuit noted but did not decide the issue of the limits

of a claimant’s right to rebut evidence generated during the course

of an administrative appeal. However, the court did conclude that

the plaintiff’s failure to request documents precluded her from

arguing that she was deprived of a full and fair administrative

review. Id. at 502 (“A claimant’s failure to fully explore and

exercise her procedural rights does not undermine the fundamental

fairness of an otherwise full and fair administrative review

process.”). The court further noted that even if the claimant had

a right to receive a copy of a document generated during the course

of the administrative appeal, “a proposition that is dubious in

light of the holdings of two of our sister circuits” (citing Glazer

and Metzger), “to exercise this purported right, Balmert was

required to request a copy of the report.” Id. at 502-03 (citing

§2560.503-1(h)(2)(iii)). Section 2560.503-1(h)(2)(iii), by its

terms, imposes a duty of access “upon request[.]” See LeSuer v.

HCA Inc., 398 F.App’x 177, 179 n. 2 (9th Cir. 2010)(finding no

procedural violation where plaintiff did not contend that she ever

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requested but was denied copies of reviews).

In the instant case, plaintiff was informed in the August 15,

2011, letter, that “upon request, the Plan will provide you, free

of charge, with a copy of the documents, records, or other

information that are relevant to your appeal.” AR 6. No request

by plaintiff for documents appears in the record. No request to

inspect either the administrative record before the Plan

administrator or new documents received by the trustees during the

appeal was included in the appeal letter of October 14, 2011. See

AR 36. Plaintiff was also invited to attend the trustees’ meeting

at which his appeal was heard, which would have provided plaintiff

with another opportunity to ask to inspect the contents of the

administrative record, but plaintiff elected not to attend the

meeting. AR 61, 91. Even assuming that plaintiff had a right

under §2560.503-1(h)(2)(iii) to inspect and copy evidence obtained

by the Plan during the course of the appeal, he could have

preserved those rights by including a request for copies of any

documents generated during the course of the appeal in his appeal

letter.

The court in Metzger did include a safety valve in its

decision by noting that the applicable regulations were consistent

with “full and fair review” so long as “appeal-level reports

analyze evidence already known to the claimant and contain no new

factual information or novel diagnoses[.]” Metzger, 476 F.3d at

1167. With this language, the court recognized that a case might

arise where even compliance with the applicable regulations might

not be sufficient to provide a claimant with a “full and fair

review.” However, the facts of this case do not warrant applying

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such an exception. 

The record fails to show that plaintiff was prejudiced by the

trustees’ consideration of the new evidence. That evidence was

more of the same type of evidence already before the Plan

administrator. The new evidence, such as the video of plaintiff

picking up and delivering gravel and the advertisements for his

business, concerned matters with which plaintiff had personal

involvement and knowledge. Plaintiff does not deny that he drove

a dump truck with gravel, as depicted in the video. In fact,

plaintiff stated in his motion that the Plan had previously been

given documents “on two occasions that Mr. Willard was employed as

a driver/farm hand and even specifically stated he hauled gravel”

and that plaintiff “does not deny” that he “hauls gravel in a dump

truck from time to time.” Doc. 30, pp. 11, 13; see also AR 252

(May 12, 2011, letter of counsel acknowledging that plaintiff was

self-employed driving a dump truck with gravel). Plaintiff’s

counsel asserted in his letter of October 14, 2011, that the Plan

was aware that plaintiff had a commercial driver’s license. AR 36. 

Plaintiff had previously submitted his 2010 tax return to the Plan,

which states that his occupation is “DRIVER” and included a

schedule for business income concerning his business as a “FARM

HAND.” AR 235-236. The new evidence simply corroborates evidence,

including plaintiff’s tax returns and the admissions in counsel’s

letters establishing that plaintiff drove a dump truck hauling

gravel, which was before the Plan at the time of the initial

suspension of benefits.

In his motion, plaintiff does not contest the accuracy of the

new evidence. Plaintiff does not contend that he would have

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challenged the veracity of this evidence if given the opportunity

during the appeals process. In fact, the nature of the new

evidence would have made it difficult to refute. It includes video

footage of plaintiff driving a dump truck, standing outside the

truck at a gas station during the trip, dumping gravel on a

driveway and raking it, then driving the truck into his own

driveway; audio recordings of the investigator’s conversations with

Dr. Paul and a clerk at Melvin Stone; and newspaper advertisements

for Willard Gravel bearing the same phone number shown on

plaintiff’s 2010 tax returns.3

 Rather, plaintiff simply notes in

passing that new evidence was considered, then argues that the new

evidence was not relevant to the notification requirement found in

§6.06(f). See Doc. 30, p. 11. Plaintiff’s alleged compliance with

the notice requirement is one of plaintiff’s primary arguments in

this case, which the court has addressed below, and the trustees’

consideration of the new evidence in no way impedes plaintiff’s

ability to make that argument now.

The court concludes that the receipt by the trustees of new

evidence during the appeals process did not deprive plaintiff of a

full and fair review of his claim on appeal.

3. Alleged New Ground for Decision

A plan administrator “may not initially deny benefits for one

reason, and then turn around and deny benefits for an entirely

different reason, after an administrative appeal, without affording

the claimant an opportunity to respond to the second, determinative

3 Plaintiff also refers to the photographs of him operating a backhoe as

constituting new evidence. However, the placement of these photographs before

Dr. Shadel’s report in the administrative record indicates that the Plan had them

prior to the August 15, 2011, suspension of benefits. Even if they are

considered new evidence, they also would be difficult to refute.

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reason for the denial of benefits.” Balmert, 601 F.3d at 501. 

Plaintiff argues that the administrative appeal was procedurally

unfair because the trustees allegedly affirmed the suspension of

benefits on appeal based on a new ground not relied on by the Plan,

specifically, Plan §6.06(a).4

 

The August 15, 2011, decision of the Plan referred to Plan

§6.06(f). AR 5. The administrator specifically noted §6.06(f)’s

language that the administrator shall “notify the Fund

Administrator of certain details of any employment after such

benefits have commenced” and “shall suspend pension benefits upon

learning of subsequent potential service of 41 Hours of Service or

more for an employer within the jurisdiction of the union.” AR 05. 

The Plan noted that plaintiff had made a statement during his

disability examination that he had worked as an operating engineer

after 2005; that the Plan had received documents indicating that

plaintiff had worked as a dump truck driver hauling gravel in 2010;

and that plaintiff had a current commercial driver’s license. AR

5. The Plan concluded that plaintiff was in violation of §6.06(f).

In the February 3, 2012, decision, the trustees began by

quoting from Plan §6.06(a). That section provides, “Any monthly

benefit otherwise payable under this Plan shall be permanently

forfeited for any month in which a Participant or former

Participant is credited with 41 or more hours of service in that

month in the geographic jurisdiction of the Union in a trade or

craft in which the Participant was employed[.]” AR 143. 

4

 The court notes that plaintiff himself seeks to inject §6.06(a) into this

case, essentially arguing that the suspension of benefits provision in §6.06(f)

is modified by the “same trade or craft” language found in §6.06(a), see Doc. 31,

pp. 9-10. That argument is addressed later in this opinion.

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Basically, §6.06(a) addresses the issue of whether a participant

has any property rights in suspended benefits, whereas §6.06(f)

addresses the procedural requirements for a suspension of benefits. 

However, the issue of forfeited property rights was not before the

trustees, and they made no findings on that subject.

Rather, the trustees’ decision reviewing the suspension of

benefits by the Plan was clearly based on §6.06(f), the same

provision relied upon by Orrand in the initial notification letter

suspending plaintiff’s benefits. The trustees’ decision also

quoted from the notification requirement and the suspension of

benefits provision in §6.06(f). AR 143. The trustees’ decision

noted that the “evidence supports the Plan’s presumption that you

are working more than 41 hours a month as an operating engineer[,]”

a reference to the presumption afforded the Plan under §6.06(f). 

AR 143-144. The trustees’ decision also observed that the issue

before the Board was “whether it was reasonable for the Plan to

presume you were working more than 41 hours a month as an operating

engineer.” AR 144. The Plan suspended plaintiff’s benefits due to

evidence that plaintiff was potentially working more than 41 hours

per month working as a dump truck driver. AR 5. The trustees on

appeal concluded that the evidence “supports the Fund

Administrator’s decision to suspend your pension benefits.” AR

144. This was not a case where the trustees on appeal relied on an

entirely different reason for denying benefits.

B. Arbitrary and Capricious Review

1. Standard of Review

Review under the arbitrary and capricious standard is

“extremely deferential.” McClain v. Eaton Corp. Disability Plan,

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740 F.3d 1059, 1064 (6th Cir. 2014). Such review “is the least

demanding form of judicial review of an administrative action; it

requires only an explanation based on substantial evidence that

results from a deliberate and principled reasoning process.” 

Morrison, 439 F.3d at 300; see also, Cultrona v. Nationwide Life

Ins. Co., 748 F.3d 698, 704 (6th Cir. 2014)(same); McClain, 740

F.3d at 1065 (“‘When it is possible to offer a reasoned

explanation, based on the evidence, for a particular outcome, that

outcome is not arbitrary or capricious.’”)(quoting Shields v.

Reader’s Digest Ass’n, Inc. 331 F.3d 536, 541 (6th Cir. 2003)). 

Although “the standard is not without some teeth, it is not all

teeth.” McClain, 740 F.3d at 1064 (noting that “[a]n ‘extremely

deferential review,’ to be true to its purpose, must actually honor

an ‘extreme’ level of ‘deference’ to the administrative decision”). 

“The arbitrary and capricious standard requires courts to review

the plan provisions and the record evidence and determine if the

administrator’s decision was ‘rational.’” Schwalm v. Guardian Life

Ins. Co. of America, 626 F.3d 299, 308 (6th Cir. 2010). In

reviewing the administrator’s decision, the court’s review is

limited to the administrative record which was before the plan

administrator at the time of the benefit determination. Id. at

308.

Where the plan grants the administrator discretionary

authority to construe and interpret the provisions of the plan, the

administrator is entitled to “great leeway in interpreting

ambiguous terms.” Shelby County Health Care Corp. v. Southern

Council of Indus. Workers Health and Welfare Trust Fund, 203 F.3d

926, 935 (6th Cir. 2000). The court “must accept a plan

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administrator’s rational interpretation of a plan even in the face

of an equally rational interpretation offered by the participants.” 

Morgan v. SKF USA, Inc., 385 F.3d 989, 992 (6th Cir. 2004); see

also Mitzel v. Anthem Life Ins. Co., 351 Fed.App’x 74, 81 (6th Cir.

2009)(“Under the arbitrary and capricious standard, courts must

favor a plan administrator’s interpretation over an equally

reasonable contrary interpretation.”)(emphasis in original, citing

Morgan).

2. Notice Provision of §6.06(f)

Under §6.06(f), a participant receiving benefits “must notify

the Fund Administrator of certain details of any employment after

such benefits have commenced.” AR 170 (emphasis supplied). 

Section 6.06(f) requires the fund administrator to suspend benefits

“[i]f the Participant does not provide such notice[.]” Plaintiff

argues that the Plan should not have suspended his benefits because

he provided notice of his employment as a farm hand and dump truck

driver, and therefore the suspension clause of §6.06(f) was never

triggered.

Section 6.06(f) states that the details provided by the

participant “shall include the name and address of the employer,

work site location, date employment commenced, nature of

employment, actual hours worked by month and expected monthly

hours.” Such a plan provision is authorized under 29 C.F.R.

§2530.203-3(b)(5), entitled “Verification,” which provides that

“[a] plan may provide that an employee must notify the plan of any

employment” and “may request from an employee access to reasonable

information for the purpose of verifying such employment.” 29

C.F.R. §2530.203-3(b)(5). The purpose of this regulation is to

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permit an employer to obtain “factual information sufficient to

establish that any employment does not constitute” the type of

employment under 29 C.F.R. §2530.203-3(c) which would render

pension benefits subject to forfeiture. §2530.203-3(b)(5).

Plaintiff provided copies of his 2010 tax returns in response

to Orrand’s letter of March 18, 2011. Those returns included

plaintiff’s name and address, along with a Schedule C for profit or

loss from business which stated that plaintiff was a “FARM HAND.” 

AR 236. The federal 2010 tax return also listed plaintiff’s

occupation as “DRIVER.” AR 235. Even assuming that the

administrator could conclude from these documents that plaintiff

was self-employed in his own business as a “FARM HAND” and

“DRIVER,” the tax documents provide no information concerning the

work site location, date employment commenced, the precise nature

of the employment, actual hours worked by month, or expected

monthly hours. Some additional information was provided by

plaintiff’s counsel in his letter of May 12, 2011, in which he

stated that plaintiff was “self employed as a driver/farm hand. 

His duties in these positions consisted of driving a trailer with

hay and driving a dump truck with gravel.” AR 252. However, this

additional information likewise falls short of providing all of the

“details” required under §6.06(f), most critically, the actual

number of hours he worked and his expected monthly hours,

information which is highly relevant to the suspension of benefits

clause. It is obvious from the plain language of §6.06(f) that the

information provided by plaintiff to the Plan was not sufficient to

satisfy the notice requirements of that section, and the Plan

administrator was justified in proceeding to decide if a suspension

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of benefits was warranted. 

3. Alleged Conflict with Prior Decision

Plaintiff argues that the decision of the trustees affirming

the suspension of benefits was arbitrary and capricious in light of

the June 24, 2011, decision reinstating his benefits. Although the

Plan’s letter of April 18, 2011, stated that it was in regard to

“Suspension of Pension Benefits”, neither that letter nor the June

24th letter made any reference to §6.06(f). Rather, the April 18th

letter stated that plaintiff was “no longer qualified to receive

disability pension benefits” and that plaintiff’s benefits “will

cease effective May 1, 2011.” AR 245. The letter of June 24,

2011, informed plaintiff that “[b]ased on current language

contained in the Ohio Operating Engineers Pension Fund, Mr.

Willard’s pension benefits have been reinstated at this time.” AR

257. This language indicates that Orrand reinstated plaintiff’s

benefits based upon his review of Plan terms.

The terms of the Plan support this conclusion. Although

§6.06(f) gives the plan administrator the authority to suspend

pension benefits on the ground that plaintiff had worked for “41

Hours of Service or more for an employer within the jurisdiction of

the Union,” that section does not permanently disqualify a

participant from receiving benefits. Under Plan §6.06(b),

“[b]enefits shall be payable again after the Participant notifies

the Fund Administrator in writing as to the first calendar month in

which the Participant did not engage in 41 or more hours of

service.” AR 169. Based on this language, Orrand may have

concluded that the April 18th notice stating that plaintiff was “no

longer qualified to receive disability pension benefits” and that

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his benefits would “cease” overstated his authority under the Plan.

The June 24th letter contains no language suggesting that

Orrand had concluded that the evidence was insufficient to support

a finding that plaintiff was self-employed for 41 hours per month

in his gravel business. Even if such a conclusion could be

inferred from that notice, it would not conflict with the Plan’s

subsequent decision to suspend benefits. When the Plan suspended

plaintiff’s benefits in August 15, 2011, it had additional evidence

before it, namely, the statements credited to plaintiff by Dr.

Shadel that plaintiff was working as an operating engineer, the

record of plaintiff’s current commercial driver’s license, and

photographs of plaintiff operating heavy equipment taken in March

of 2011. The record fails to demonstrate that the Plan’s August

15, 2011, decision suspending benefits conflicted with the earlier

reinstatement of benefits on June 24, 2011.

4. Alleged Failure to Correctly Apply §6.06(a)

Plaintiff also argues that the trustees acted arbitrarily and

capriciously used the term “operating engineer” in place of the

language “trade or craft” found in §6.06(a) of the Plan. Again,

that section provides for the forfeiture of benefits for any month

in which a participant “is credited with 41 or more hours of

service in that month in the geographic jurisdiction of the Union

in a trade or craft in which the Participant was employed while a

Participant in the Plan.” AR 169. Plaintiff essentially argues

that in determining whether he had “subsequent potential service of

41 Hours of Service or more for an employer” under the benefits

suspension provision of §6.06(f), the Plan and the trustees were

also required to incorporate the language “trade or craft in which

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the Participant was employed” found in §6.06(a) as an additional

requirement under §6.06(f). Advocating a narrow interpretation of

the phrase “trade or craft,” plaintiff further argues that since he

was formerly employed in the “trade or craft” of crane operator,

the finding of the Plan that he was working as an “operating

engineer” was not sufficient to authorize a suspension of benefits

under §6.06(f). 

The court notes that the language of §6.06(f), the procedural

vehicle for the Plan’s decision in this case, is broader than the

language of §6.06(a). Subsection (f) makes no reference to “trade

or craft.” Rather, it provides that participants receiving

benefits “must notify the fund Administrator of certain details of

any employment after such benefits have commenced.” AR 170,

§6.06(f)(emphasis supplied). As noted above, the Department of

Labor regulations authorize plans to require the production of

“factual information sufficient to establish that any employment

does not constitute” a type of employment which would render

pension benefits subject to forfeiture. §2530.203-3(b)(5).

Subsection (f) further provides, “If the Participant does not

provide such notice, the Fund Administrator shall suspend pension

benefits pursuant to this section upon learning of subsequent

potential service of 41 Hours of Service or more for an employer

within the jurisdiction of the Union unless it is unreasonable

under the circumstances for the Fund Administrator to presume that

the Participant was engaged in such service.” AR 170 (emphasis

supplied). The term “employer” includes “any individual or

corporate employer who is signatory to a contract with the Union

... and any employer not presently a party to such a contract[.]” 

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AR 154, Plan §1.14 (emphasis supplied). In referring to “any

employer,” the Plan does not specify that this employer be any

particular type of employer. Although the trustees stated in their

decision that they had information that plaintiff was working as an

“operating engineer,” the language of the plan is broad enough to

require plaintiff to notify the Plan of his self-employment as a

dump truck driver and operator of other heavy equipment such as the

backhoe, regardless of whether such employment was as an operating

engineer or in the “trade or craft in which the Participant was

employed while a Participant in the Plan[,]” see §6.06(a), or some

other type of employment.

In short, the trustees were not required to determine whether

plaintiff’s gravel-hauling business fell within the “trade or

craft” language found in §6.06(a) in deciding whether plaintiff

complied with the notice requirements of §6.06(f) or whether the

Plan acted properly in suspending plaintiff’s benefits under

§6.06(f). There was language in the trustees’ decision, which may

be regarded as dicta, which suggests how the trustees viewed that

issue. For example, Orrand noted on behalf of the trustees that

plaintiff’s benefits were suspended due to evidence that he was

“actively working in the trade,” including evidence that plaintiff

listed his occupation as “driver,” his commercial driver’s license,

and pictures of him operating a front loader. AR 143. Orrand also

observed that while the appeal was pending, the Plan “obtained

additional evidence confirming that you are actively working in

Local 18's jurisdiction as an operating engineer,” noting the video

showing plaintiff driving a dump truck and delivering gravel. AR

144. Orrand further commented that plaintiff had provided no

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evidence that he was “not working in the trade” beyond his

conclusory denial that he had worked as an operating engineer since

2005 and medical records which allegedly supported his disability. 

AR 144. Orrand then stated, “Your claims are contrary to the

pictures and video that exist of you operating heavy equipment

including a dump truck.... [W]hile you may not have worked as a

crane operator after 2005, you have worked as an operating

engineer.” AR 144. This language suggests that the trustees would

conclude that working as an operating engineer, including operating

other heavy equipment such as a dump truck and backhoe, was

sufficient to constitute working in the same “trade or craft.” 

However, the trustees were not required to decide that issue in

determining whether to suspend benefits under §6.06(f).

Even assuming that a §6.06(f) suspension of benefits also

requires addressing the §6.06(a) “trade or craft” issue, and even

assuming that the trustees’ letter actually decided that issue,

their interpretation of the Plan language was not arbitrary and

capricious. As noted above, the plan administrator is entitled to

“great leeway in interpreting ambiguous terms.” Shelby County

Health Care, 203 F.3d at 935. Under Department of Labor

regulations, suspension of pension benefits is permitted where the

participant engaged in over forty hours of employment in “[a] trade

or craft in which the employee was employed at any time under the

plan[.]” 29 C.F.R. §2530.203-3(c)(2)(emphasis supplied). The term

“trade or craft” is defined as “a skill or skills, learned during

a significant period of training or practice, which is applicable

in occupations in some industry” and the determination of whether

a particular job is included in a “trade or craft shall be based

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upon the facts and circumstances of each case.” 29 C.F.R.

§2530.203-3(c)(2)(ii).

Plaintiff argues that no evidence has been submitted to

support the trustees’ conclusion that his work as a dump truck

driver and operating a backhoe constituted working in the same

“trade or craft” in which he was previously employed. However,

because the Board of Trustees is composed of both employer and

union representatives, it is reasonable to assume that the trustees

would be familiar with what kinds of positions would constitute the

“trade or craft” within their industry. In addition, the trustees

did have before them Dr. Mosley’s treatment records dated September

26, 2011, which reflect that plaintiff was a “former crane operator

and truck operator for Kokosing.” This patient background

information was added to Dr. Mosley’s records following a phone

call from plaintiff. AR 114, 145. Therefore, even if the words

“trade or craft” in §6.06(a) must be narrowly construed, as

plaintiff suggests, to include only the specific work previously

performed by plaintiff, the trustees had evidence before them that

plaintiff was previously engaged in the “trade or craft” of truck

driver prior to receiving disability pension benefits.

5. Sufficiency of Evidence

Plaintiff also argues that the evidence was insufficient to

support the suspension of his benefits. Section 6.06(f) requires

the administrator to suspend pension benefits “upon learning of

subsequent potential service of 41 Hours of Service or more for an

employer within the jurisdiction of the Union unless it is

unreasonable under the circumstances for the Fund Administrator to

Presume that the Participant was engaged in such service.” AR 170. 

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This provision only demands a finding of the “potential” for 41

hours of service in a month. The evidence before the Plan and the

trustees, discussed above in the court’s summary of the

administrative record, was sufficient to meet this standard.

Plaintiff argues that his 2010 tax returns, which showed

minimal income from sources other than his pension benefits, and

the surveillance video, which only documented his activities for a

few hours, fail to support the Plan’s conclusion that he was

working at least 41 hours in one month as an operating engineer. 

However, the Plan was not required to accept the income figures

plaintiff reported on his tax returns as being accurate,

particularly in light of the other evidence the Plan had which

indicated that plaintiff had been actively operating a gravel

business since at least 2010. Further, the fact that the

surveillance video, which showed plaintiff driving a dump truck and

applying gravel to a driveway, encompassed only a representative

sample of plaintiff’s business activities, does not preclude a

finding that there was a “potential” that plaintiff worked in his

business at least 41 hours per month.

The court finds that the Plan and the trustees have offered

“an explanation based on substantial evidence that results from a

deliberate and principled reasoning process[,]” Morrison, 439 F.3d

at 300, and that the Plan administrator’s decision was “rational,”

see Schwalm, 626 F.3d at 308.

IV. Conclusion

The court concludes that the decision of the Plan

administrator suspending plaintiff’s benefits and the trustees’ 

decision upholding that suspension were not arbitrary and

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Case: 2:12-cv-00266-JLG-TPK Doc #: 35 Filed: 09/30/14 Page: 34 of 35 PAGEID #: <pageID>
capricious. The trustees’ decision was rational and based upon

substantial evidence. Plaintiff’s motion for judgment on the

administrative record (Doc. 30) is denied. Defendants’ motion for

judgment on the administrative record (Doc. 29) is granted. The

clerk shall enter judgment on the administrative record in favor of

the Ohio Operating Engineers Pension Plan and the Ohio Operating

Engineers Pension Plan Board of Trustees.

Date: September 30, 2014 s/James L. Graham 

 James L. Graham

 United States District Judge 

 

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